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NRC Waste Confidence Public Meeting Comments, Ellen Ginsberg, Oct. 1, 2013

Ellen Ginsberg
Vice President and General Counsel
Nuclear Energy Institute
to the
Nuclear Regulatory Commission Waste Confidence Public Meeting
Oct. 1, 2013

I’m Ellen Ginsberg. I serve as vice president and general counsel for the Nuclear Energy Institute. My members include all operating reactor licensees.

I appreciate the opportunity to offer the following comments on behalf of NEI and its members. I would also note that NEI will be providing comprehensive written comments on the proposed rule and draft GEIS in November. My comments today are meant to support and be consistent with the written comments.

From industry’s perspective, the Waste Confidence rulemaking has been a model of regulatory transparency. The NRC has encouraged and embraced wide public participation through multiple avenues, allowing the agency to consider stakeholder comments from all viewpoints. This approach will ensure that the final Waste Confidence rule and GEIS are well grounded in a thorough record.

Also, I’d like to highlight the importance of a timely resolution to the waste confidence issues. We strongly support making this rulemaking a priority. Nuclear power plays an important role in this nation’s energy mix. Given that 63 percent of the nation’s carbon-free electricity comes from nuclear generation, continuing to license safe, secure, reliable, and environmentally sound nuclear facilities is sound public policy. More particularly, the resumption of licensing activities is essential for long-term power planning decisions.

The “Waste Confidence Decision” has always appeared to be confusing, and we support the NRC’s efforts to clarify the related issues. From a substantive standpoint, it is most important to understand that Waste Confidence (and the new GEIS) is not a licensing decision. It does not authorize individual licenses; instead, it comprises but one element of the agency’s NEPA analysis for licenses and renewed licenses. Individual plants still must be licensed individually, with reviews of the necessary safety and environmental issues. Industry commends the staff’s efforts to communicate how the waste confidence review fits into the broader regulatory context through tools like Figure 1.2 of the draft GEIS.

Also, it is important to keep the relevant NEPA principles in mind as we proceed through this rulemaking. First, an EIS serves dual purposes: It is to ensure federal agencies will have available and consider detailed information on environmental impacts of major federal actions (i.e., “hard look”), and it is to ensure such information is made available to public and other stakeholders that may also play a role in decision-making process. NEPA itself does not mandate specific results or licensing decisions, but, rather, prescribes a process designed to prevent uninformed agency action. NEPA requires careful consideration and balancing of environmental impacts, but does not elevate such impacts above other considerations. Agencies may take action, even in situations where significant environmental impacts may result. Further, NEPA does not require that an agency delay action until better information becomes available—CEQ regulations address “incomplete” or “unavailable” information (worst-case assumptions are not required). To illustrate the point, there is case law [Massachusetts v. NRC, 708 F.3d 63 (1st Cir. 2013)] holding, in part, that NEPA did not require NRC to withhold the granting of a renewed license because of the possibility that currently unavailable information might become available in the future.

So, while the NRC has chosen to broadly address the environmental impacts of waste storage in the draft GEIS, it is important to not to exaggerate what the Court of Appeals directed the agency to address—spent fuel pool fires, leaks, and a “no repository” scenario. The Court of Appeals did not reject the NRC’s longstanding findings on the feasibility of a geologic repository or the safety of spent fuel storage pending disposal. The prior findings and record continue to support the current rulemaking and GEIS.

As time is short, I again thank you for the opportunity to speak. Industry looks forward to participating in the remaining public meetings and submitting comprehensive written comments in November.